TMI Blog2022 (11) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... without mentioning the word as taking cognizance, it cannot be said that the Magistrate has not applied the mind and thereafter, taking cognizance for second time is not a bar under the law. The learned Magistrate has not stated that he has taken the cognizance and thereafter posted the matter for recording the statement. But this statement along with the complaint both of them were filed together and based upon the complaint as well as the sworn statement, the learned Magistrate took cognizance - Merely in the first paragraph, the learned Magistrate has not stated cognizance was not taken and later in the last paragraph, on the same day, at the same time by a single order it has taken cognizance and issued the process. Therefore, it c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er has relied upon the judgment of the Co-ordinate Bench of this Court in the case of State By A. Mahadeva vs. Papireddy reported in ILR 1988 KAR 666. 4. Learned counsel for the petitioner has seriously contended that the order sheet of the learned Magistrate reveals that the matter has been posted for recording sworn statement without taking cognizance, therefore there is a clear violation of the law. As per the judgment of the High Court as well as the Hon'ble Supreme Court, the learned Magistrate ought to have taken cognizance and thereafter, the matter could be posted for taking or recording sworn statement of the witnesses. Therefore directly recording the sworn statement and thereafter taking cognizance is violation of Sections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 156(3) states Any Magistrate empowered under Section 190 may order such investigation as above mentioned. Mr. Thomas was certainly a Magistrate empowered to take cognizance under Section 190 and he was empowered to take cognizance of an offence upon receiving a complaint. He, however, decided not to take cognizance but to send the complaint to the police for investigation as Sections 147, 342, and 448 were cognizable offences. It was, however, urged that once a complaint was filed the Magistrate was bound to take cognizance and proceed under Chapter XVI of the Code. It is clear, however, that Chapter XVI would come into play only if the Magistrate had taken cognizance of an offence on the complaint filed before him, because Section 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed under Section 200 Cr.P.C. he must take cognizance of the offence and after taking cognizance of the offence he must proceed under Section 200 Cr.P.C. and the subsequent Sections. 7. The another Co-ordinate Bench of this Court in the case of V.S. Joshi stated supra, wherein, at paragraph No. 9, it is categorically held as under: 9. The Magistrate need not specifically state in his order that he has taken cognizance of the offences. Taking of cognizance by the Magistrate can be inferred from the facts and other material on record. The very fact that the Court below has decided to record the sworn statements after perusing the complaint itself would mean that Magistrate has applied his mind and has taken cognizance of the offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Magistrate posted the matter for recording the statement without mentioning the word as taking cognizance, it cannot be said that the Magistrate has not applied the mind and thereafter, taking cognizance for second time is not a bar under the law. Based upon the principles laid down by the Hon'ble Co-ordinate Bench of this Court in the case of V.S. Joshi and on perusal of the impugned order passed by the Magistrate in the case on hand which is read as under: Complainant present. Complainant has filed this complaint seeking for penalizing the accused for the offence punishable under Section 138 of N.I. Act. He also filed sworn statement by way of affidavit in other words evidence on affidavit Under Section 145(1) of NI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d thereafter, taking the cognizance. Of course in the first paragraph, the learned Magistrate has not stated that he has taken the cognizance and thereafter posted the matter for recording the statement. But this statement along with the complaint both of them were filed together and based upon the complaint as well as the sworn statement, the learned Magistrate took cognizance. Therefore, the citation relied by learned counsel for the petitioner in the case of Mahadeva vs. Papireddy is not applicable to the case on hand. Merely in the first paragraph, the learned Magistrate has not stated cognizance was not taken and later in the last paragraph, on the same day, at the same time by a single order it has taken cognizance and issued the proc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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